Funding eFiling: Selecting a Strategy

This is the first half of Part 3 of 10 in the eFiling Blog Series. Check out Part 2 here.

Despite the tendency of court eFiling advocates (admittedly aided and abetted occasionally by vendors) to move directly to discussion of the benefits of eFiling, it will come as no surprise that there are both up-front and ongoing maintenance costs. Thus, a threshold question is “How to fund eFiling”.

A number of eFiling funding strategies have emerged. Which strategy, or mix of strategies, will be optimal for each organization will depend on the organization’s particular situation and needs. This article will touch on some of the basic strategic approaches and the basic questions each organization should carefully consider as it develops its own eFiling implementation strategy.

Here’s the caveat: This viewpoint is from 50,000 feet. Courts will have to deal with the situation at ground level. Translation: this piece is a broad and general overview to assist in planning how to start. The best way to work through successful planning is to engage a partner who is knowledgeable and experienced in development and implementation of successful eFiling systems.

Basic funding models fall into four categories. These categories can be mixed based on needs: different case types, for example could use different models. And, undoubtedly, there are other “custom” types of models. But, no matter the model, these three things are always true:

eFiling systems are NOT FREE, either to acquire or to operate. Even if they are ultimately less expensive than the manual systems they replace, they still have a cost.

Someone is going to have to pay for it. Even if payment goes from the filer to a vendor in exchange for the vendor operating the system so that the court itself sees no added expense, someone (usually the filer) is paying.

Each strategy has important direct and indirect costs, benefits, and implications.

In light of Rule 2, the fundamental strategies include:

The court pays for everything. This strategy requires funding through the court’s budget appropriation. The obvious drawback is that it requires convincing the funding authority to provide the funding. Two obvious advantages include not imposing additional costs on filers and not incurring the overhead costs of collecting, accounting for, and disbursing funds received for eFiling. In many situations an incremental “technology fee” can be added to existing fees, and thus the cost can be paid as a small tax to all users.

Filers pay a per-filing convenience fee. From the 50,000 foot level, this method looks “free” to the court, assuming the fees are set so that the amount collected at least equals the cost of the system. At the ground level, it gets a lot more complicated. Questions such as “Which filers pay” (Prosecutors? Indigents? Criminal Defendants?); “How to treat different types of filings”; “Bill by filing or by file size?”; and so on.

Filers pay a one-time, per case fee. An advantage over the per-filing model is the significantly more simple administrative overhead of assessing and collecting fees.

Filings are free; the court charges for other enhanced services (such as document viewing). A variation of this model is to allow parties to view their own cases for free, but otherwise charge. Again, in the matter of administration, “some assembly is required”.

Whether eFiling should be mandatory is a threshold question with no simple answer. On the one hand, for the court (and wider justice system) to realize efficiencies of eFiling sufficient to offset its costs, the faster the court can exit the “dual system” (both eFiling and paper filing) the better. On the other hand, unless the funding model is essentially “Free to the User”, there are important access to justice considerations. These considerations lead to potentially complex and expensive administration of “exceptions”.